Indiana Senate Bill 313

Summary

Indiana Senate Bill 313 would amend the existing state statute that criminalizes the possession or dissemination of any material that contains depictions of minors engaged in “sexual conduct.” The bill would add to the definition of “sexual conduct” “female breast with less than a fully opaque covering of any part of the nipple.”

The existing statute criminalizes sexually explicit depictions of minors, but it covers material beyond what the Supreme Court has held as outside of First Amendment protection. For instance, it criminalizes the dissemination of material that contains descriptions of sexual conduct of minors. It also bars the possession of images of adults who appear to be minors if they lack serious literary, artistic, political, or scientific value. It also makes it a crime to possess drawings of minors engaging in sexual conduct.

Status

Gov. Mike Pence signed S.B. 313 into law. It goes into effect July 1, 2015.

Analysis

There are three reasons that Indiana’s existing law is unconstitutionally overbroad:

It criminalizes material with descriptions of minors, which are understood to mean written or oral communications, rather than images.

It criminalizes images of adults who appear to be minors if they lack serious literary, artistic, political or scientific value.

It criminalizes drawings, computer-generated images or other non-photographic images of minors.

In New York v. Ferber, the Supreme Court specifically noted that only visual depictions are not protected by the First Amendment. The Supreme Court also addressed whether the government can criminalize depictions of adults who appear to be minors. In Ashcroft v. Free Speech Coalition, the Court struck down the Child Pornography Prevention Act, which criminalized depictions of adults who appear to be minors and drawings and computer-generated images that appear to be of a minor. The Court ruled that unless the material included actual minors engaged in sexual activity, the material is protected by the First Amendment and could only be banned if it is found to be obscene.

The existing law could criminalize significant mainstream material, including many Judy Blume books with coming-of-age stories; the novel The Color Purple; art and health books that contain paintings or drawings with a sexual theme; and movies such as Animal House, Romeo and Juliet, Fast Times at Ridgemont High and American Beauty that depict adults who appear to be minors.

Senate Bill 313 also raises constitutional concerns. It substantially broadens the material criminalized by the law to exhibition of “breasts with less than opaquely covered nipples.” And though it includes the qualification that the exhibition is done with the intent to “satisfy or arouse the sexual desires of any person,” the qualification is vague because it is unclear whether it refers to the person in the image, the person who captures the image or the person who publishes the image.